The Ninth Circuit Court of Appeals today released an opinion in USA v. MENDOZA, No. 06-50447, a criminal appeal. The panel consisted of Thomas G. Nelson, Richard A. Paez, and Jay S. Bybee, Circuit Judges.
T.G. NELSON, Circuit Judge:
Paul Mendoza appeals his convictions on two counts of subscribing to a false income tax return in violation of 26 U.S.C. Â§ 7201. Mendoza contends that the eight-year delay between his indictment and his arrest violated his Sixth Amendment right to a speedy trial. He further contends that the district court plainly erred when it ordered restitution during sentencing. We have jurisdiction pursuant to 28 U.S.C. Â§ 1291, and we reverse. I. Background Mendoza’s conviction was based on two income-tax returns that underreported his income. Mendoza worked for a management company in Los Angeles, California called Nobel Marketing Company where he was in charge of administering Nobel Medical Clinic. As the administrator, Mendoza was authorized to deposit clients’ checks into the clinic’s bank accounts, but he was not a signatory on the accounts. During 1989 and 1990, Mendoza embezzled approximately $285,000 from the clinic by personally collecting some of the clinic’s checks and depositing them into his own bank accounts or cashing the checks at a check-cashing company. The money from these transactions was not reported on his 1989 or 1990 tax returns. During the Internal Revenue Service’s (”IRS”) investigation of Mendoza’s failure to report the money on his income . . .
The opinion and concurrence filed May 8, 2008, slip op. 5135, are amended as follows:
1. At slip op. 5144, lines 7-12, delete the following sentences:
However, the government in that case took additional steps beyond simply entering the defendant’s arrest warrant into the law enforcement system. The government contacted Unsolved Mysteries and America’s Most Wanted, which aired segments on the case over twenty times in the United States and at least once in Mexico. Id. at 1115. Replace with the following sentence:
However, the government in that case took additional steps beyond simply entering the defendant’s arrest warrant into the law enforcement database system and the district court specifically found that the . . .
BYBEE, Circuit Judge, concurring:
Appellant Paul Mendoza was found guilty by a jury of his peers of filing false tax returns for failing to report over $285,000 in funds he embezzled from his employer. Today we are forced to overturn his conviction. I join the majority opinion because I believe we dutifully applied Doggett v. United States, 505 U.S. 674 (1992); I write separately because the facts before us demonstrate how Doggett requires a presumption unsupported by the record. Because the government did not make even a single effort to notify Mendoza of his indictment, we must find the government responsible for the constitutionally impermissible eight-and-a-half-year delay between Mendoza’s indictment and arrest. Nevertheless, we might not have been required to set aside Mendoza’s jury verdict but for Doggett’s requirement that we presume that the delay prejudiced Mendoza. In this case, it appears Mendoza suffered no prejudice. Mendoza was a manager at a medical clinic in Los Angeles, where his duties included depositing clients’ checks to the clinic’s bank account. Instead, Mendoza kept the money for himself. Over a two year period, Mendoza managed to embezzle $285,135.26, none of which he chose to report to the IRS. After being served, through his attorney, with a subpoena to provide handwriting and fingerprint exemplars for. . .